The Washington Post
By Joe Davidson
Step by step, agency by agency, Congress is moving to facilitate the firing of federal employees, cut their workplace rights and limit their pay.
Currently in the dock – workers at the Department of Veterans Affairs (VA), the Internal Revenue Service (IRS) and the Defense Department.
Earlier this week we wrote about defense legislation that would double the probationary period for civilians to two years during which they could be more easily dismissed, allow a delay in certain pay raises and permit layoffs with less consideration given to length of service and veterans’ status. Together, the Pentagon and the VA, the two largest agencies, employ about half the federal workforce. What happens to them is an indication of what’s coming to the rest.
Now, let’s look at the current push against VA workers, who have been the target of such legislation since the scandal over the cover-up of long wait times broke last year.
The Senate Veterans’ Affairs Committee approved on Wednesday a bill allowing the VA to revoke bonuses paid to staffers involved in that scandal. This would apply to employees who “contributed to the purposeful omission” of veterans on electronic wait lists and to supervisors who knew or “reasonably should have known” about the omissions. Employees would be able to appeal to the Merit Systems Protection Board (MSPB). The independent Office of Special Council would have to give permission before whistleblowers could be fired or demoted.
The American Federation of Government Employees (AFGE), which represents most VA staffers, said the bill would leave “managers with too much discretion and the potential for abusive bonus practices.” But the argument made by Sen. Kelly Ayotte (R-N.H.), when she introduced the bill with Sen. Claire McCaskill (D-Mo.), found more support. “It’s outrageous,” Ayotte said, “that VA employees who deliberately manipulated wait lists received bonus pay at taxpayers’ expense.”
Appeal rights would be sharply reduced for employees fired or demoted for performance or misconduct under another bill the committee approved. They would have just seven days to appeal to a MSPB administrative judge. Generally that’s the minimum appeal time, not the maximum. Normally, feds are given 30 days advance written notice before being fired. That’s not mentioned in this bill.
If a VA employee can prepare an appeal in seven days, the judge would then have 45 days to make a final decision. If a decision was not rendered in that time, the department’s decision would stand. Unlike other federal employees, VA staffers would not be allowed to appeal an administrative judge’s decision to the full MSPB and potentially to the courts.
That’s also a hit on the rights of the MSPB, a presidentially appointed body charged with guarding federal workplace protections.
One more thing – the bill would make it easier to fire most VA employees by stretching their probationary period from one year to 18 months.
The House Veterans’ Affairs Committee approved similar legislation last week and a measure applying only to VA senior executives was adopted last year with a bipartisan majority. When Sen. Marco Rubio (R- Fla.), who is running to be the boss of all feds, introduced the Senate bill, he said he wanted to “show our veterans the respect they have earned by removing any employees with terrible performance from the system our veterans rely on.”
But not by slashing due process.
Susan Tsui Grundmann, MSPB chairwoman, told the Senate committee last month the legislation “would eliminate a covered employee’s right to notice and any opportunity to respond prior to the imposition of an adverse personnel action.” The abbreviated 45-day period for the administrative judges would make “proper adjudication extremely difficult,” she added.
Despite significant doubts, Sen. Richard Blumenthal (Conn.) the top Democrat on the committee, voted for the legislation because he said it “enables us to make progress on accountability, although the measure as now drafted raises serious constitutional issues that must be resolved.” He hopes to draw Republican support for his substitute measure. Among other things, Blumenthal’s bill allows employees “a reasonable opportunity, but not less than 7 business days, to answer the charges orally and in writing.”
AFGE called the approved legislation an “assault on due process.” Federal Managers Association President Patricia Niehaus said civil service protections “were written specifically to preclude elected representatives from using civil servants as political pawns…The arbitrary limitation of due process is not the American way.”
Like the VA, the IRS has had more than its share of scandal. Now the agency and its employees are paying the price.
The Senate Appropriations Committee approved a $10.5 billion IRS budget for fiscal year 2016, $470 million less than this year. The legislation prohibits, according to a committee statement, “funds for bonuses or to rehire former employees unless employee conduct and tax compliance is given consideration.”
The National Treasury Employees Union, which represents the tax workers, did not oppose the provision. Labor organizations almost always object to measures that limit bonuses, but not this time.
NTEU President Colleen M. Kelly explained: “NTEU and the IRS previously agreed that awards can be withheld from employees with serious misconduct issues.”
(Joe Davidson writes the Federal Diary, a column about federal government and workplace issues that celebrated its 80th birthday in November 2012. Davidson previously was an assistant city editor at The Washington Post and a Washington and foreign correspondent with The Wall Street Journal, where he covered federal agencies and political campaigns.)